Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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Child abuse charges are usually thought to involve sexual molestation. However, this is just one of many ways someone can be charged with child abuse. Of course, someone who is alleged to have sexually abused a child will be charged with a violation of Penal Code section 288(a) or other Penal Code sections that involve sex crimes. Force does not have to be involved in child sexual abuse. If a person is under 18 they are considered a child and the charge of child abuse can apply.

Recently, a child abuse charge was alleged against a couple who allowed their child to smoke marijuana. The child was only a toddler and the couple took a video of the incident. This kind of case is one where the abuse is obvious. If a 23 month old baby is smoking pot the charge of child abuse is self-evident. It seems that it would go without even saying it but a baby should never be allowed to smoke let alone smoke a controlled substance no matter whether we think marijuana should be legalized or not.

However, what about driving under the influence of alcohol and having your child in the car seat? Someone who drives their car while under the influence can and will be charged with child endangerment (Penal Code section 273a). The prosecutor will accuse you of endangering the health of the child by driving your car while under the influence and even though the child is strapped into the car seat, the theory is that the child is in danger because you, the driver, aren’t as able to care for his or her safety as if you were driving sober. It increases punishment for driving under the influence and labels you as a child abuser even though you didn’t have any intent to strike, molest, or otherwise hurt your child.

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This question comes up a lot. Defendant A comes into my office and says, “I’m guilty. I did it. Do I really need a lawyer? Maybe I should just throw myself on the mercy of the court and get it over with.”

The question then becomes, how does that usually work out? And, the answer is, usually not so well. Unless the case is one that is so minimal, like a traffic ticket, the judge has too much discretion to just plead guilty without thinking about the consequences.

If you have a lawyer, you can be fully advised of all the impacts of your plea of guilty. For example, many crimes now carry immigration consequences that defendants don’t know about and don’t even consider when they plead guilty. A lawyer can often mitigate the effects of the immigration issue for the defendant. The judge will tell you that this conviction may lead to deportation, exclusion from the United States, or denial of naturalization but the judge doesn’t consider that there may be alternatives to the plea of guilty. A lawyer on your side can advise you if pleading guilty is the best and only thing to do under the circumstances.

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If you are in trouble with the police you need to hire the best lawyer you can find. The State Bar of California has established a system that recognizes experts in the various fields of the law. If the police come knocking at your door, you had better have someone you can count on as an expert in criminal law. The certification from the State Bar of California as a Specialist in Criminal Law is your guarantee you are getting the best representation possible.

The police have all the power of the government behind them. The prosecutor can call on unlimited resources to get a conviction against you. It is the prosecutor’s only job is to go after people, trying to convict them of the crimes with which they are charged.

Make no mistake, the prosecutors don’t have anything better to do than to prosecute you. Many clients will say, “Will they really spend the time and money to prosecute me for this? Aren’t there more serious crimes they should be going after? Why won’t they just let me go? I’m not a criminal.”

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Often times I hear, “Well, if I hire a lawyer, won’t it look like I’m guilty?” The clear and simple answer is “No“. It’s just plain smart. Who is telling you that you don’t need a lawyer? It’s law enforcement. Who is telling you that, “I just want to hear your side of the story”? It’s the cops. Who then turns that around against you and tells you, “You’re lying”! Again, it’s those trying to put you in jail.

Who is the one who, even though you are using your best memory, tells you that you’re lying because others have said something different? Guess who, it’s the same people who are trying to put you in jail. Who is allowed by law to lie to you when they question you? It’s the police, that’s who.

Did you know that the police can lie to you when questioning you? They can tell you that they have your DNA when they don’t or that you left fingerprints when you weren’t even there? If some court later finds that what the police did was designed to get the truth from YOU then there isn’t anything at all wrong with them lying through their teeth to YOU.

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DNA stands for deoxyribonucleic acid. It is the genetic material found in nearly every cell in the human body. It is as unique to each person as a fingerprint, and can be used to exclude a suspect in a crime, or indicate that the person is guilty.

DNA can be found at a crime scene through many things; bodily fluids, hair, skin cells. It can be obtained from almost any source, a hat, a drinking glass, a hair left at the scene. Since it is found in virtually all human cells, any cell left behind at the crime scene that is found by the police, can be examined.

Forensic scientists speak in their own language. A suspect can be either excluded or not excluded. If the person cannot be excluded, then the scientist usually says there is an astronomically high probability it is someone beside you. In other words, the scientist might say something like there is a one in one trillion chance the DNA belonged to someone OTHER than you. For all practical purposes this means the DNA belongs to you.

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A good criminal defense attorney connects with his clients on more than one level. There is the objective analysis of the facts that must be done without regard to emotions. In order to evaluate a case properly, a good attorney needs to look dispassionately at all the facts and circumstances involved. He needs to know the law and how the facts fit into the law. He also needs to know exactly what the prosecutor has to prove in order to win, which is why being a former prosecutor can big a big advantage.

In establishing the facts and circumstances of the alleged crime, the attorney also must establish a relationship with the client and the client’s family. This is where the emotional involvement comes into play. The case is made up of more than just facts. It is made up of a human being with all that entails. A good attorney needs to care about his client. He worries about the client as a person. He has concerns about more than just getting the client “off”. In almost every crime there is an underlying problem and the lawyer worries about his client getting well.

If substance abuse is involved, the lawyer worries about the client obtaining treatment and getting well. If the client is going to jail, what is going to happen to his family while he is away? How will he pay his fines? His bills?

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Drunk in Public is defined by California Penal Code Section 647(f). In general the definition is that a person is drunk in public if he is too intoxicated to care for his own safety or the safety of others. This is a very high standard.

Many times the police use this as a method of simply clearing the streets. The reality is that the charge very well might not stick. In other words, the police can take you into custody and charge you with drunk in public but one of two things may happen: the prosecutor may reject the charge or the charge may not be proven in court.

If you are charged with this, it is essential that you consult with an experienced criminal law specialist immediately. It is quite possible that your attorney can get the charge dismissed. If that isn’t possible, there are often alternatives such as paying court costs and/or attending drug and alcohol classes that can be employed in order to earn a dismissal.

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The basic rule of entrapment (California Penal Code 647a) is that to qualify as a defense, the police have to actually plant the idea of the crime in your head. They must do this by engaging in some type of enticement. One of the ways this is done is to make the reward so lucrative the police essentially overcome your free will. This can also be accomplished if the defendant is in an especially vulnerable position. Entrapment can be a complete defense to charges of wrongdoing.

This will be easier to understand by looking at an example. In the early 1980’s, James DeLorean, the man who invented the DeLorean car was in danger of losing his automobile company because he was in deep financial trouble. The FBI and Drug Enforcement officials devised a sting operation in which informants and undercover FBI agents came to DeLorean and wanted him to sell 55 pounds of cocaine. DeLorean had no prior record and no history of drug sales.

Lawyers for DeLorean argued that he was in an especially vulnerable position in that his company was on the brink of disaster. In addition, they argued, the agents offered an amount of money that was so huge that no reasonable person would be able to turn it down. DeLorean, they argued, never had any intention of selling drugs until the FBI agents planted the idea in his head. A jury agreed with the defense and acquitted DeLorean of the charges. This was reported in Time Magazine.

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Mrs. Jones calls the police and says Mr. Jones hit her. The police come and arrest him for domestic violence. Later Mrs. Jones changes her mind and says it didn’t happen and she won’t testify. What will happen?

The prosecutor can still proceed with his case against Mr. Jones by subpoenaing Mrs. Jones to court and forcing her to take the stand. Assuming she was telling the truth originally, she doesn’t have a privilege not to testify against her husband. If she refuses to testify, the District Attorney would seek to introduce her previous statements against the defendant. If Mrs. Jones said it didn’t happen, the DA could use the statements as prior inconsistent statements to convict Mr. Jones. Mrs. Jones could potentially face a perjury charge (lying under oath), however that is virtually never done. If Mrs. Jones refuses to testify at all and the judge finds she has no legal excuse for not testifying, she could be held in contempt of court and fined or jailed. Again, this almost never happens.

If Mrs. Jones wants to say the violence never happened but is afraid of perjury, she should consult a criminal defense attorney so he can say she as a legitimate reason for refusing to testify (self incrimination). If the prosecutor wants to proceed he would have to get a superior court judge to grant Mrs. Jones immunity.

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Can looking at pornography in your own home on your computer lead to criminal charges? Like most aspects of law the answer is not so simple, but the short answer is YES. However, looking at adult pornography in your own home is not what can get you into trouble. It is child pornography that is illegal.

There are two aspects of so called cyber porn that involve children. One is the issue of children or minors looking at porn on the internet. Many courts have ruled that software is available to protect minors from inadvertently viewing pornography online. Adult pornography, whether on the internet or elsewhere is considered a protected part of free speech and therefore cannot be prohibited. Groups have tried to prevent internet porn on the basis that children could easily be subjected to porn on the internet but consistently courts have considered protective software preferable to an abridgment to the first amendment right to free speech.

The second issue is that of the actual depiction of children in pornography. Courts have ruled that child pornography is not protected by the first amendment and is therefore subject to criminal penalties. It can be a crime to knowingly posses, sell, receive, send or transmit child pornography through the internet.

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Newport Beach, CA 92660
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Fax: 714.544.4337

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